The Financial Remedies Court in practice

Sitting as the Lead Financial Remedies District Judge in Leicester and as a former practising barrister in this area of law, I thought it would be useful to share some general tips, drawing upon both my experience of presenting and now hearing financial provision cases. I start with the acknowledgment that, of course, different judges prepare and conduct cases differently and that different courts have different local practices and guidance which practitioners need to follow. None of what follows is a criticism of any practice but rather it is hoped that it is constructive in assisting practitioners to present their cases most effectively in court. I would also like to express my thanks to Rhys Taylor, counsel, for his help in discussing these issues.

The First Directions Appointment

The start date for the new era of the Financial Remedies Court was 22 January 2022. This heralded the introduction of the mandatory preliminary documents – the ES1 and ES2.

ES1 and ES2

In the ES1 the “other material” section to be completed in bullet points, which is limited to 80 words, is often not really thought about sufficiently by practitioners. However, this is a critical section when you appreciate that at this stage the court often does not get Notes or Position Statements from solicitors and counsel. So use this section and use it wisely to put forward your case!

In terms of the directions, a reminder that where jointly obtained material/documents are not in fact obtained, that there is an obligation to set out in the ES1 the reasons why that was not possible. In my experience this is rarely done. However, it does help the court understand what has been going on between the parties and decide the force with which to make the directions going forward.

My tip regarding effective presentation of ES2 is to clearly highlight in yellow the values which the parties have not agreed with good informative side notes in the commentary column. For example: “This is a property where the value is agreed but there is a dispute about the extent of H’s beneficial interest” or: “A dispute about a soft loan to W’s sister which H objects to its inclusion”. Side notes such as these are instantly helpful for the court to log and identify the nature of the dispute rather than just having different values placed by the parties in the columns.

Housing particulars

This is the first opportunity for the parties to obtain and present particulars of housing which they propose meet their needs. However, the court often just receives a bundle of estate agent particulars which are difficult to navigate. The quickest way to relay this information in terms of presentation is to have a top cover sheet where a table sets out the area in which properties are situated and the price range that the housing particulars show (either in ascending or descending order if possible).

Where it is critical for a party to stay in the FMH or to have somewhere more or less in the same place, eg due to the schools or place of work, then distances need to be explained. This can be demonstrated effectively by having a cover sheet with an area map pinpointing where the properties are situated for which particulars have been provided, adding in the school catchment area and/or the radius in which suitable properties are situated.

This method applies equally to the preparation of housing particulars at FDR stage.

Questionnaires

Questionnaires are limited to four pages and anything more is going to be subject to scrutiny by the court. The test for the court is to only allow anything in excess of that limit if it is necessary, relevant and proportionate. My tip is to prepare your list of issues first and then measure and reference that back to the questions that you are proposing to ask in your questionnaire. Preparation of the justification of the questions is time well spent for the FDA hearing and also enables you to sieve out the pointless questions in advance. This method applies equally when considering the other sides’ questionnaire.

A reminder regarding the Schedule of Deficiencies is that the FPR 2010 do not provide for Schedules of Deficiencies; they are not an automatic part of financial procedure. Therefore, do not rely upon it as a guaranteed means of obtaining further information as the court’s permission is required.

The FDR and negotiations

My key tip would be to always draft a concise document for the FDR hearing, be it a Note, a Position Statement or a Skeleton Argument. As to the length of such a document PD 27A at paragraph 5.2A.1 states that for an FDR it can be up to 20 pages whilst the Efficiency Statement states it can be up to 12 pages. However, in practice, a constructive case document should be no longer than eight sides of A4. Any longer and it is going to be difficult to digest. Please use bullet points and abbreviations. Also forget about including a long case summary; this is rarely pertinent nor does it tend to further your arguments.

Litigants in person

Having a litigant in person as your opponent can be tricky, but some of the misconceptions in your discussions that need to be cleared up are that the particulars of properties produced by your side are not the precise properties where they have to move into, but rather show the range that is available. It is also necessary to explain conduct in the context of financial remedy proceedings because every party feels the urge to fill in the box on their Form E but a litigant in person tends in particular to feel and believe that it is going to have an impact on the proceedings.

“Split the difference”

A common perception in practitioners and litigants in person appears to be that where there is a difference in values or in the arguments between the parties that the court will just “split the difference”. However, this is not necessarily so. I would urge practitioners to have more confidence in the arguments that they are presenting. The use of coherent and compelling arguments can demonstrate that your party’s stance is the right answer without having to compromise.

I am a great fan of the Chris Voss and I would recommend reading a really good book co-authored by him: Never split the difference: Negotiating as if your life depended on it. He was a leading international hostage negotiator for the FBI. I trust that you feel that your situation when attending a court hearing differs slightly from that! He has some fantastic ideas for effective presentation and strategies to employ when dealing with opponents who are difficult or who are feeling under pressure.

So how do you do provide a compelling argument about your case? I would make the following suggestions:

• By addressing the issues and not skirting around them. This prevents the judge continually asking questions such as, “How is the party to rehouse themselves when they have no mortgage capacity?” or as I might put it, “How is that going to happen?”
• Be realistic with your client prior to the hearing. Don’t leave that difficult conversation until you get into the court (or to counsel!) or for them to hear it for the first time from the judge.
• Spend time and thought preparing a concise case document. A multi-page Skeleton Argument may look impressive to the client but actually in terms of clarity and presenting the case to the court it is counterproductive. There is a natural tendency to skim a long, meandering Skeleton Argument whereas a shorter, focused and carefully formatted (so that it is easy to read and follow) document is much more likely to be read in full. Remember it is the judge you are trying to persuade of the merits of your case, not your client.
• Prepare the percentages that each party will obtain under the proposed order sought so that the court can readily cross-check with the principle of fairness.